Satish Mehra vs Anita Mehra
2011 Latest Caselaw 4372 Del

*            HIGH     COURT    OF   DELHI     AT    NEW     DELHI

+                     Crl.M.C. No. 3009/2011

                                           Date of Decision: 07.9.2011

       SATISH MEHRA                                    ..... Petitioner
                          Through Mr. G.P. Thareja with Mr. Dharmish
                          Thanai, Advs.

                          versus

       ANITA MEHRA                                    ..... Respondent

Through None.

CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

     1. Whether Reporters of local papers may be
        allowed to see the judgment ?                            No
     2. To be referred to the Reporter or not ?                  No
     3. Whether the judgment should be reported
        in the Digest ?                                          No

V.K. SHALI, J.(Oral)

Crl. M.A. No. 10600/2011

1. This is an application for condonation of delay of 479 days in

filing the present petition under Section 482 Cr.P.C against the order

dated 12.4.2010.

2. The ground for condonation of delay as stated in the application is

that, the petitioner had preferred a revision petition in the Court of

Sessions against the impugned order. However, it was brought to the

knowledge of the petitioner that the case from which this revision

petition has arisen had been transferred to the Family Court and

therefore, the revision petition against an order passed by the learned

MM could not be entertained by the learned Sessions Court.

Accordingly, the petitioner had sought permission to withdraw the

petition with liberty to approach the High Court. This prayer of the

petitioner was allowed by the learned Addl. Sessions Judge, vide order

dated 04.8.2011. It is stated that because of this reason there was a delay

of 479 days which was beyond the control of the petitioner and

constitutes 'sufficient cause' under Section 5 of the Limitation Act and

accordingly, the same may be condoned.

4. I have heard the learned counsel for the petitioner and perused the

averments. I am of the view that for the reasons mentioned in the

application, the delay of 479 days in filing the present petition under

Section 482 Cr.P.C was occasioned because of the pendency of the

revision petition in Sessions Court, which did not have the power to deal

with the same and this constitutes 'sufficient cause' and accordingly, the

same is condoned.

5. Application stands allowed.

Crl. M.A. No. 10599/2011

1. This is an application seeking exemption from filing the

legible/certified copies.

2. Subject to the deficiency being rectified in due course, the

application is allowed.

3. Application stands disposed of.

Crl. M.C. No. 309/2011 & Crl. M.A.No. 10598/2011

1. This is a petition filed by the petitioner under Section 482 Cr.P.C

assailing the order, dated 12.4.2010, passed by Ms.Veena Rani, learned

Metropolitan Magistrate, by virtue of which the learned Magistrate has

directed the present petitioner to pay an interim maintenance to the

respondent/wife and three children @ Rs.35,000/- per month w.e.f.

28.4.2009 till the time the complaint of the respondent/wife under

Section 125 Cr.P.C is decided on merits.

2. Briefly stated, the facts leading to the filing of the present petition

are that the petitioner got married to the respondent on 18.2.1980 in

India according to Hindu Rites and ceremonies. The petitioner, at the

time of marriage, was a non-resident Indian (NRI). He was settled in

the US since 1975. The respondent migrated to US with the petitioner

where another marriage ceremony is alleged to have taken place on

19.05.1982. The couple was blessed with three children; daughter Nikita

born on 02.04.1988, daughter Riva born on 10.11.1989 and son Neal

born on 10.11.1989.

3. Matrimonial relations between the present petitioner and the

respondent were not very cordial. It is alleged that from 1980 till 1992,

the present petitioner used to give US $ 31,200 per month to the

respondent/wife for running her household affairs. However, it is

alleged that the cheque of the aforesaid amount when encashed used to

be taken back by the petitioner, thus, she never got the monthly

allowance from the petitioner which made her life very difficult.

4. It is also alleged that the petitioner used to, physically as well as

mentally, abuse the respondent as well as her children. The respondent

had gone to the extent of lodging a report against the petitioner of

having subjected his own daughter Nikita to physical and sexual abuse.

5. It is also alleged that there was an amount of Rs.4.58 crores in the

joint account of the present petitioner and the respondent/wife, which

was drained off by him. The petitioner is stated to be a man of status

who has assets in India as well as in US. The value of the assets in India

is stated to be approximately Rs.13 crores, while as the value of the

assets of the petitioner in US is not known to the respondent. On the

basis of the aforesaid facts, after migration to India respondent filed a

complaint under Section 125 Cr.P.C claiming maintenance @

Rs.3,79,500/- for herself and for her children.

6. Learned Metropolitan Magistrate after discussing the case law

and taking the prima facie view of the documentary evidence observed

that the claim of maintenance by the respondent/wife to the tune of

Rs.3,79,500/- per month was highly excessive. However, keeping in

view the facts of the case and the various principles of law, the learned

MM came to the conclusion vide order dated 12.4.2010 that the

respondent/wife is entitled only to a maintenance @ Rs.35,000/- per

month till the final disposal of the petition from the date of filing of the

application, i.e. 28.4.2009.

7. Against the said order dated 12.4.2010, a revision petition was

filed, which was kept pending till the order dated 04.8.2011 was passed

by the learned Additional Sessions Judge wherein the petitioner had

sought withdrawal of the petition with liberty to file a petition before the

High Court and thereafter the present petition has been filed.

8. I have heard the learned counsel for the petitioner. He has tried

to go into the merits of the impugned order by alleging that the

respondent/wife was in the habit of leveling false and frivolous

allegations against the present petitioner. In this regard, he has drawn

the attention of the Court to a reported judgment in the case titled, Satish

Mehra vs. Delhi Administration (SC), reported as 1996 (3) Recent

Criminal Reports, page 410, where the Appellate Court had quashed

the FIR and the proceedings under Section 354 & 376 IPC lodged by the

respondent/complainant against the present petitioner for having

sexually abused her three year old daughter. I have gone through the

said judgment. No doubt that the Apex Court had quashed the FIR under

Section 354 & 376 IPC on account of false and frivolous allegations

purported to have been made by the respondent/ wife. However, that

cannot be the basis for challenging an order of grant of ad interim

maintenance. Section 397(3) Cr.P.C. clearly lays down that revision

petition against an interlocutory order is not permissible. Admittedly,

order of grant of ad interim maintenance is an interlocutory order and

could not be assailed in revision. If it has to be challenged, the petitioner

has to make out an overwhelming case to show that the exercise of

powers under Section 482 Cr.P.C. is warranted to prevent the abuse of

processes of law and to secure the ends of justice. The learned counsel

for the petitioner has not been able to point out any such infirmity in the

impugned order. Orders regarding grant of ad interim maintenance are

passed to prevent vagrancy. In the instant case the respondent has not

only to look after herself but has also to look after her three children and

their education. It was specifically put to the learned counsel for the

petitioner since an order of interim maintenance was passed against him

on 12.4.2010, requiring him to pay maintenance to the respondent/wife

@ Rs.35,000/- per month, w.e.f. 28.4.2009, he should inform the Court

as to how much amount of money he has paid from 28.4.2009, to the

respondent/wife, till date. The answer to this question was that not even

a single penny has been paid by the present petitioner to the respondent

despite the impugned order having been passed. In such a contingency,

the learned counsel for the petitioner is made aware of the

pronouncement of this Court in the case titled Rajeev Preenja vs. Sarika

in Crl. M.C. No.1859/2008 reported as 2009(159) DLT 616, wherein

the learned Single Judge of this Court had taken a view that the revision

petition filed by the husband in the Court of learned Sessions Judge

against the order of interim maintenance passed by the learned

Magistrate in favour of the wife ought not to be entertained till the time

the entire amount of interim maintenance, which was due under the

order passed by the learned Magistrate is actually paid or deposited in

the Court. It is pertinent to note that the respondent/wife in the said

case has not only to maintain herself but her children also.

9. In my considered opinion, the petitioner, before being permitted

to assail the validity of the order passed under Section 125 of the

Cr.P.C, though it is an interlocutory order, ought to have shown his bona

fide by paying some amount of maintenance to the respondent/wife.

He was specifically given an opportunity to deposit some amount at his

own discretion in order to show his bona fide, however, learned counsel

for the petitioner explains his inability. If the petitioner is seeking to

assail an order of interim maintenance without paying even a single

penny as maintenance to the respondent/wife, I am afraid that such a

petition ought not to be entertained because the whole purpose of

passing an order of interim maintenance gets defeated. The petitioner

has been directed to pay interim maintenance with effect from

28.04.2009 and nearly two and a half years have elapsed not even a

single penny has been paid. Under these circumstances, how the

respondent, a lady with three children, is going to survive.

10. I have gone through the impugned order. I do not find any

infirmity in the same so as to assume that there is any gross abuse of the

processes of law or any order to the contrary to the one which is already

passed on 12.04.2010, is required to be passed.

11. Dismissed.

V.K. SHALI, J SEPTEMBER 07, 2011 KA